National Consumer Disputes Redressal
General Manager, South Central ... vs Jagannath Mohan Shinde on 11 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3574 OF 2007 (Against the order dated 20.07.2007 in Appeal No.620/2001 of the State Commission, Maharashtra) General Manager, South Central Railway & Ors. Petitioners Versus Jagannath Mohan Shinde ..Respondent BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For the Petitioners : Mr.Rajeshwar Singh, Advocate Mr.Vijay Pratap Singh, Advocate For the Respondents : Mr.Shirish Deshpande, Advocate Pronounced on 11th April, 2012 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by General Manager, South Central Railway & Ors. (hereinafter referred to as the Petitioners) against the order of the State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as the State Commission) in Appeal No.620/2001 which was decided in favour of Jagannath, Respondent herein who was the original complainant before the District Forum.
The facts of the case are that the Respondent along with his wife and daughter were travelling in their reserved berths by train from Mumbai to Aurangabad on 21.09.1997 and their bag containing gold ornaments and cash was secured with a chain to the lower berth rod. When the train reached Nashik Station, Respondents wife noted that the Train Ticket Examiner (TTE) had permitted a person to enter the reserved compartment and he was sleeping in the passage between the lower berths. When the train arrived at Aurangabad Station, Respondent found that their bag which they had secured with a chain was untied and gold ornaments and cash worth Rs.1,31,000/- was missing. Respondent immediately lodged a complaint with the Police Inspector, Southern Central Railway giving relevant details and specifically stating that the alleged theft appears to have been committed by the unauthorized person who entered the compartment perhaps in connivance with the TTE. A complaint was also submitted to the DIG, Mumbai Circle Police (Railways) and other higher authorities. On 27.07.1997, Respondent was informed by the Police that despite rigorous efforts, Police were not able to solve the case. Being aggrieved, Respondent filed a complaint with the District Forum on grounds of deficiency in service on the part of the Petitioner and specifically the TTE and requested that the Petitioner be directed to pay him an amount of Rs.1,31,000/- towards loss of gold ornaments and cash and Rs.25,000/- as compensation.
Petitioner in response inter alia stated that in view of the fact that only the Railway Claims Tribunal has the jurisdiction to entertain such types of disputes and not the Consumer Fora, the case falls outside the purview of the District Forum. On the merits of the case, Petitioner while agreeing that the Respondent had boarded the train along with his family from Mumbai to Aurangabad, denied that any unauthorized person had entered the reserved compartment as only passengers with reserved tickets are permitted to undertake the night journey and these rules are strictly enforced. Therefore, the allegations that an unauthorized passenger was permitted to enter by the TTE is not correct.
Further, there is adequate railway security in the train to ensure the safety of passengers. It was further contended that as per provisions of the Indian Railways Act, railway authorities shall not be responsible for any loss, destruction, damage, deterioration etc. caused to passengers luggage unless the railway servant has booked the luggage and is given a receipt to this effect to the passenger. In the instant case, the passenger had not entrusted its safety to any railway official and was carrying the luggage at his own risk.
The District Forum after hearing both parties, partly allowed the complaint. The relevant part of the order of the District Forum is reproduced:
It is clear from the affidavit of complainant that his Gold Ornaments and cash were stolen away when he was returning from Bombay to Aurangabad. There are no reasons to disbelieve the complainant on this point. Now, question arises as to whether, respondents can be held responsible for the same. The theft was not committed by any Railway Subordinate. There are no direct allegations regarding theft against respondent No.3. As contended by the respondents the Railway Administration is not responsible for the loss is theft of belonging to passengers when it was not handed-over to them under a proper receipt the luggage was not booked with the respondents.
Therefore, in our opinion respondents cannot be held responsible for the theft of the luggage. The ornaments came to be stolen away from the suitcase which was tied by means of a chain to the lower berth bench. One unknown passenger was allowed to enter the compartment by respondent No.3 and the said passenger was sleeping in the open space between two benches. Allowing without ticket passengers in the sleeper coach by the Railway Conductor itself amounts to deficiency in service. One-way, the Conductor had assisted the unknown person for committing the theft. It was necessary for the Police to enquire and investigate from respondent No.3 about the stolen articles. There are no reasons to disbelieve the Affidavit of complainant on the point that respondent No.3 had allowed one unknown passenger to occupy the space between the two benches for sleeping purpose and this unknown person had ample opportunity to commit theft of the ornaments belonging to complainant.
Under these circumstances we hold that respondent No.1 to 3 are liable to pay compensation to the complainant for the deficiency in service.
District Forum also ruled that the complaint was filed within limitation.
It therefore, directed the Petitioners to pay Rs.5,000/- as compensation to the Respondent within six weeks from the date of receipt of the order failing which interest @ 6% per annum from the date of order will be applicable till realization. An amount of Rs.500/- was awarded as litigation cost.
Aggrieved by this order both parties filed appeals before the State Commission. The State Commission dismissed the appeal filed by the Petitioner/Railway Authority but allowed the appeal filed by Respondent. The State Commission concluded that the version of the Respondent that the cash amount and ornaments were kept in the bag which was tied with a chain to the lower berth rod has been supported by an affidavit which has not been convincingly challenged by the Railway authorities. State Commission thus concluded that there was no negligence on the part of the Respondent in securing his valuables. On the other hand, it was the responsibility of the TTE attached to the concerned Class coach to ensure that he would remain vigilant, particularly, during the night time and thus ensure that no unauthorized person enters the coach which he failed to do. The State Commission citing a judgement of Honble Supreme Court in Sumatidevi M.Dhanwatay Vs. Union of India & Ors.
2004 NCJ 269(SC) enhanced the award granted by the District Forum to the Respondent from Rs.5,000/- to Rs.1,31,000/- (being the value of the items lost) to be paid within 6 weeks failing which it will carry interest @ 12% per annum. Rs.2,000/-
was awarded as litigation costs.
Counsel for both parties made oral submissions essentially reiterating the facts as stated by the parties before the Fora below.
Counsel for Petitioner again emphasized that any dispute of this nature between a passenger and the Petitioner/Authority is to be decided by Railway Claims Tribunal which is set-up for the purpose and this is not a subject for adjudication before the Consumer Fora. Further, as per Section 100 of the Indian Railways Act, the responsibility of the Railways as a carrier is clearly spelt out and the Railways are responsible for loss only if the luggage was booked with a railway servant and a receipt given thereof unless it is also proved that there was any negligence or misconduct on the part of any of its servants. In the instant case, it was only the contention of the Respondent that an unauthorized person entered the reserved compartment but no other complaint was received about this fact. Further, the loss was because of the negligence on the part of the passenger in carrying the luggage and therefore, the Fora below erred in holding the Petitioner/Authority guilty of deficiency in service.
Counsel for Respondent on the other hand stated that the Fora below have rightly concluded that there was deficiency in service and stated that as observed by the State Commission there was no negligence on the part of the Respondent in securing his luggage and the theft occurred because the TTE allowed the unauthorized person to enter the reserved compartment. The Petitioner has not been able to provide any credible evidence to contradict this fact which was confirmed by an affidavit filed by the Respondent and believed by the Fora below.
We have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Respondent along with his wife and daughter was travelling by train on the night of 21.07.1997 from Mumbai to Aurangabad is not in dispute. It is also not disputed that Respondent had lodged a complaint with the Railways Police stating that he had lost gold ornaments and cash worth Rs.1,31,000/- while travelling in the train and alleging this was done because the TTE had permitted an unauthorized person to enter the reserved compartment of the train. Although, this fact has been disputed by the Petitioner, the Fora below being courts of facts after carefully weighing the evidence filed by both parties have accepted the Respondents contention confirmed by an affidavit filed by him. The plea of the Petitioner that since the Respondent had not booked the luggage against a receipt from the Petitioner/Authority as per Section 100 of the Indian Railways Act, Petitioner cannot be held responsible for the loss of any luggage not so booked is not tenable because as per Section 100 of the Indian Railways Act, it is also a fact that the Petitioner/Authority will be responsible as a carrier of luggage if it is proved that the loss was due to the negligence or misconduct on the part of the any of its servants. In the instant case, the TTE failed to perform his duties which clearly amounts to both negligence under Section 100 of the Indian Railways Act and deficiency in service as per the codified duties of a TTE. State Commission has given detailed reasoning for allowing the Respondents appeal and enhancing the compensation in terms of the orders of the Honble Supreme Court in Sumatidevi(supra).
We see no reason to disagree with the well-reasoned findings of the State Commission and therefore, uphold the same. The revision petition is, therefore dismissed. Petitioners are directed to pay the Respondent Rs.1,31,000/- jointly and severally towards compensation within 6 weeks failing which it will carry interest @ 12% per annum from the date of this order till realization. Respondent is also entitled to Rs.2,000/- towards litigation costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/